Law Times

LAW TIMES / JUNE 23, 2008 FOCUS Leave Great Aunt Agnes in the waiting room Family law tips BY GRETCHEN DRUMMIE Law Times A llowing a buddy or fam- ily member to carry the Kleenex during initial meetings with a potential client in a divorce proceeding could result in unintentionally waiving solici- tor-client privilege if the other side gets wind a third party sat in, says a Toronto lawyer in the field. That's just one family law tip that's come to light recently which lawyers need to know about, say those working in this area of law. "I would bet most family law- part of the litigation, and they are presumably not an expert, waives the solicitor-client privilege. "So, it is imperative that in the beginning you can talk about generics and how the process may work, but when you get down to the specifics of the case and they're going to tell you specific things that happened, you should give advice that the other person should leave the room," says Abbott. The exception, says Abbott, is if you've retained a chartered busi- ness valuator or the accountant is there and "you're discussing that aspect, but I think many lawyers fail to realize that [otherwise] it waives the privilege." And, Abbott says he "abso- lutely" takes advantage of it. LT PAGE 11 yers are not careful to ensure that privilege is not waived by the attendance of a stranger to the action in their interviews with their clients," says Gary Joseph, partner and firm chairman of MacDonald & Partners LLP in Toronto. But it's vitally important, and, in fact, in the standard letter the firm sends out to new clients he has inserted a paragraph addressing this. "Privilege and waiver of privi- lege is becoming a bigger issue," he tells Law Times in an interview. Meanwhile, Joseph has had issues arise in a case he has before the courts — Stewart v. Stewart, in which he represents the hus- band — that are helpful for other lawyers to know about. He notes that, "practitioners should look to a recent decision of Mr. Justice Edward Belobaba, [in Stewart] of the Superior Court, dealing with the extent of disclosure necessary to be set out in schedule B to your client's affidavit of documents." He says the judgment notes 'I would bet most family lawyers are not careful to ensure that privilege is not waived by the attendance of a stranger to the action in their interviews with their clients,' says Gary Joseph. that the "usual procedure of simply claiming a blanket privilege over a solicitor's file does not satisfy the requirements of the rules." Thus, since the decision's mid-May release, "if required by opposing counsel, family law solicitors must now review their files in detail, identify each and every document over which priv- ilege is claimed and set out the reason for the claim." The effect? "It certainly increas- es the amount of work family law counsellors are going to have to do on affidavit of documents if requested by opposing counsel," says Joseph. "And it also increases the likelihood to challenges to privilege. In the end, family law counsel are going to have to be much more knowledgeable about the law of privilege, when it can be claimed, and when it is waived. Also the distinction between solic- itor-client privilege and litigation privilege needs to be better under- stood by the family law bar." Another decision in Stewart was made June 2 by Justice Ruth Mesbur, where she declined to implement counselling and thera- py recommendations of an asses- sor on the basis the court lacked jurisdiction to do so. The deci- sion deals with the absence of the court's jurisdiction to order par- ents or other caregivers to attend counselling. Joseph says there does appear to be jurisdiction to order counselling for children as an incidence of custody. "Think about the number of assessments that include recom- mendations for therapy and there's no judicial hammer to enforce Childview_LT_June23_08.indd 1 that," says Joseph. "That's scary because that's usually part and par- cel of a recommendation." Joseph says it's important for family lawyers to know because "many, if not most assessments contain some sort of counselling recommendation that can no lon- ger, if it ever was, be enforced by way of a court order." Meanwhile, what do you do when a client brings Great Aunt Agnes to your office for support? Direct her to the nice magazines in the lobby . . . "What a lot of people and a lot of lawyers fail to appreciate is when you have a client come to your office, quite often they bring a friend for the first time," says William Abbott, a partner at McDonald and Partners. "Any- thing that is discussed while that friend is there, because they are not Key Developments in Estates and Trusts Law in Ontario, 2008 Edition Madam Justice Bonnie Croll and Melanie A. Yach With contributions by: Jeanne Chiang, Susan Easterbrook, Lou-Anne Farrell, Paul Gibney, Robin Goodman, Heather Hansen, Ian Hull, P. Ann Lalonde, Jonathan Lancaster, Martha McCarthy, Margaret O'Sullivan, Suzana Popovic-Montag, Archie Rabinowitz, Susan Slattery, Kristina Soutar, M. Jasmine Sweatman, Corina Weigl and Kimberly Whaley Published annually, this book brings together a team of leading practitioners who together provide expert insight into the latest noteworthy developments in estates and trusts law. Find out how these key developments will affect your practice and your clients, now and in the future. 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